State Central Authority and Jazeer (No 2) - [2015] FamCA 312

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & JAZEER (NO 2)

[2015] FamCA 312

FAMILY LAW – Practice and procedure — interim extension of time in which mother can file an application to re-open her case

APPLICANT:

State Central Authority

RESPONDENT:

Ms Jazeer

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

Ms K Hams

FILE NUMBER:

MLC

2384

2014

DATE DELIVERED:

26 March 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

26 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Porrit

SOLICITOR FOR THE APPLICANT:

Department of Human Services, Legal Services Branch

COUNSEL FOR THE RESPONDENT:

Ms Harris (amicus curiae)

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Glezer Lanteri & Associates

Orders

IT IS ORDERED THAT:

1.These proceedings be adjourned for mention before me on 17 April 2015 at 9.00 am.
2.The time for compliance by the mother with paragraph 1 of the Order made on 25 February 2015 be extended to 13 April 2015 at 12.00 noon.
3.In the event that the mother will contend in the context of Regulation 16(3)(b) of the Regulations that her mental health precludes or compromises her ability to prosecute or participate in the parenting proceedings in New Zealand, the mother file and serve any expert evidence upon which she relies in respect of that contention as part of the documentation filed pursuant to paragraph 2 hereof.
4.There be liberty to the parties to seek an administrative adjournment by consent.

IT IS FURTHER ORDERED BY CONSENT THAT:

5.The mother file and serve documentation in the New Zealand proceedings contemporaneously with filing documents in this Court AND IT IS NOTED that the mother’s agreement to this order was a condition to the Court granting an extension of time to file documents in these Hague return proceedings.

IT IS FURTHER ORDERED THAT:

6.My reasons for decision be transcribed and when settled be made available to the parties and a copy be sent to Judge McHardy in New Zealand.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Jazeer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2384 of 2014

State Central Authority

Applicant

And

Ms Jazeer

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

EX TEMPORE

This matter comes back before me for mention in circumstances where the mother had the opportunity up until yesterday at 12 noon to file and serve any application to re-open her case, together with any evidence in support of that application. She has not yet done so.
The case is proceedings brought by the State Central Authority for the return of B, born in 2007, to New Zealand. The mother seeks to re-open the evidence in support of that case to rely on reg 16(3)(b) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth). That is, that returning the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FamCA 312
Decision Date: 26 March 2015

CaseChat Overview and Summary

The proceedings before Bennett J in the Family Court of Australia concerned an application by the State Central Authority and Jazeer, relating to parenting proceedings in New Zealand. The dispute involved the mother's ability to participate in those proceedings, with a specific focus on her mental health.

The court was required to determine whether the mother's mental health precluded or compromised her ability to prosecute or participate in the parenting proceedings in New Zealand, in the context of Regulation 16(3)(b) of the relevant Regulations. The court also considered the timing of the mother's compliance with previous orders and the filing of expert evidence.

Bennett J ordered an adjournment of the proceedings for mention on 17 April 2015. The time for the mother to comply with a previous order was extended to 13 April 2015. Crucially, the court ordered that if the mother intended to rely on her mental health as a reason for being unable to participate in the New Zealand proceedings, she was to file and serve any expert evidence supporting this contention by 13 April 2015. By consent, it was further ordered that the mother file and serve documentation in the New Zealand proceedings contemporaneously with filing documents in the Australian court, noting this was a condition for the extension of time granted. The judge also ordered that reasons for the decision be transcribed and made available to the parties and sent to a judge in New Zealand.

Orders

Orders of the court

IT IS ORDERED THAT:

1. These proceedings be adjourned for mention before me on 17 April 2015 at 9.00 am.

2. The time for compliance by the mother with paragraph 1 of the Order made on 25 February 2015 be extended to 13 April 2015 at 12.00 noon.

3. In the event that the mother will contend in the context of Regulation 16(3)(b) of the Regulations that her mental health precludes or compromises her ability to prosecute or participate in the parenting proceedings in New Zealand, the mother file and serve any expert evidence upon which she relies in respect of that contention as part of the documentation filed pursuant to paragraph 2 hereof.

4. There be liberty to the parties to seek an administrative adjournment by consent.

IT IS FURTHER ORDERED BY CONSENT THAT:

5. The mother file and serve documentation in the New Zealand proceedings contemporaneously with filing documents in this Court AND IT IS NOTED that the mother’s agreement to this order was a condition to the Court granting an extension of time to file documents in these Hague return proceedings.

IT IS FURTHER ORDERED THAT:

6. My reasons for decision be transcribed and when settled be made available to the parties and a copy be sent to Judge McHardy in New Zealand.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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